| People v Montero |
| 2015 NY Slip Op 06013 [130 AD3d 474] |
| July 9, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Pedro Montero, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (Andrew C. Fine ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Ryan Gee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered May 9,2012, convicting defendant, upon his plea of guilty, of criminal possession of a weaponin the third degree, and sentencing him, as a second felony offender, to a prison term of 2to 4 years, unanimously affirmed.
The court properly denied defendant's suppression motion. Police observeddefendant, who was standing in the lobby of a Housing Authority building, open the doorfor another man who had been standing around outside, apparently waiting for access.The officers were aware that the building was normally entered either by means of a keyor by being buzzed in by someone in an apartment. Defendant and the other manremained in the lobby for several minutes without going towards the elevators. Theirbehavior provided the police with an objective, credible reason to make a minimallyintrusive inquiry into whether they lived there (see People v Wighfall, 55 AD3d 347 [1st Dept 2008],lv denied 11 NY3d 931 [2009]). Although the behavior of the two men may havehad innocent explanations, a request for information "need be supported only by anobjective credible reason not necessarily indicative of criminality" (People vHollman, 79 NY2d 181, 185 [1992]). Contrary to defendant's contention, this is not acase where the officer's request for information was based merely on a defendant'spresence in a drug prone location or desire to avoid contact with police (see People v Johnson, 109AD3d 449, 450 [1st Dept 2013], appeal dismissed 23 NY3d 1001[2014]).
Defendant's remaining suppression arguments are unpreserved and we decline toreview them in the interest of justice. As an alternative holding, we also reject them onthe merits. In particular, defendant's answer to the officer's question justified, at least, afurther inquiry. The officer's request that defendant remain in the lobby to investigatewhether defendant and the other man were residents or guests of the building was not aseizure (see e.g. People vFrancois, 61 AD3d 524, 525 [1st Dept 2009], affd 14 NY3d 732[2010]), and the information the officers ultimately learned upon investigation providedthem with probable cause to arrest defendant for criminal trespass (see e.g. People v Lozado, 90AD3d 582, 583-584 [1st Dept 2011], lv denied 18 NY3d 925 [2012]).Concur—Gonzalez, P.J., Friedman, Renwick, Moskowitz and Clark, JJ.